Parallel judiciary system in Hungary is to the Government's taste

analysis

In June 2018 the Hungarian Parliament decided to establish a separate administrative court system as per the Seventh Amendment to the Fundamental Law of Hungary. It will begin its operations as of 1 January 2020. Although the restructuring of the Hungarian judicial system required a constitutional amendment, there was no political consensus behind the decision.

The governing parties (Fidesz-KDNP) have a two-thirds majority in Parliament, which is enough to meet the constitutional criteria prescribing that a qualified majority is necessary for the amendment of the Fundamental Law, for passing so-called cardinal laws about important constitutional issues such as the courts and the status of judges, and for electing, for example, the president of the supreme judicial body. In fact, the Seventh Amendment to the Hungarian Fundamental Law was passed by the votes of the governing parties and Jobbik; while in December, the cardinal laws on the new administrative court system[1] were approved only by Fidesz and KDNP. Moreover, the laws on the new administrative court system were adopted during a parliamentary session where opposition MPs prevented the Speaker from taking his seat at the podium and protested by blowing whistles and shouting.

These administrative courts will decide in matters that are important and sensitive in political terms, or that may be associated with corruption: the organisation of political demonstrations, the eligibility of questions submitted for referendum, electoral objections, public procurements, etc. Many critics suggest that although the Government is referring to historical Hungarian traditions of separate administrative courts and arguing they will produce faster, more effective and more professional judicial proceedings, the new regulation will serve the Government's political interests in cases where the courts are intended to exercise legal control over the Government.

It is not the separate administrative court system per se that has provoked sharp criticism. Several democratic countries have a separate administrative court system in addition to the ordinary courts. Even before the amendment, Hungary already had 20 so-called administrative and labour courts (one in each county and the capital) handling cases requiring the judicial review of administrative decisions. Rather, it is the act of reorganization that is considered more than a potential threat to the independence of the judiciary, since it offers a formally legal opportunity for the governing majority to intervene in the operation of the courts without openly breaching the rules intended to guarantee their independence, such as the recruitment of judges and their permanent tenures. The concerns seem to be well-grounded, because the ruling majority has used this technique several times since 2010. For example, the increase to the number of Constitutional Court justices provided the possibility for the election of new justices voted for only by the governing parties and eventually the opportunity to seat a majority of such members on the Constitutional Court (the well-known "court packing" approach). The transformation of the judicial administration system involved separating the central administration office from that of the Chief Justice and served as a justification for the early removal of the Supreme Court’s President before the expiration of his six-year term.[4]

While the presently-operating administrative and labour courts are connected to the ordinary court system at many points, the new administrative court system will be a parallel, separate, two-tier institution (eight regional administrative tribunals and the High Administrative Court). The separate system will include its own supreme judicial body, its own chief justice, and will be administered through a different framework than the ordinary courts. The administrative judges will be newly recruited in part by the new court administration, which will be performed by the Minister of Justice.

Many concerns have emerged about the judges who will adjudicate at the newly-established administrative courts. How will they be selected? According to the law on the transition to the new judicial system, the judges who decide administrative cases in the current judicial system are entitled to ask for transfer to the new administrative courts until 30 April 2019, and if they do so, they will automatically become administrative judges. As for the court executives working in the administrative field, the situation is different, since their mandates will expire at the end of the year. On the one hand, this rule leads to vacant court executives' offices to be filled under the new regulation. On the other hand, the number of judicial positions could be higher than the number of judges applying to transfer. This number will be determined later by the Minister of Justice - in other words, the executive power is entitled to create vacancies to be filled within the framework of the administration of this new court system.

The reorganization of the judicial system, therefore, offers a lawful opportunity to reshape judicial personnel in the field of administrative adjudication; moreover, this reshaping can be influenced by the Government. The President of the High Administrative Court is to be elected by the Parliament on the recommendation of the President of the Republic by 15 June 2019. As was mentioned above, the governing parties hold the two-thirds majority required for this election. The appointment of the court executives and new judges is placed in the hands of the Minister of Justice. Inviting applications for vacant judicial positions falls under the competence of the Minister of Justice as well. The applications are assessed and ranked by a council composed, for the most part, of judges; but, the Minister of Justice is entitled to interview the applicants, to deviate from the ranking made by the council, and to propose other candidates for appointment to the bench by the President of the Republic. The appointment procedure for the presidents and vice-presidents of the administrative tribunals is similar; the Minister of Justice also has the power to decide about these positions.

As we can see, judicial administration in this new system of administrative courts follows the ministerial model. Hungary is not unfamiliar with such ministerial administration. Until 1997, the Minister of Justice had administrative powers, while judicial self-governing bodies held decision-making powers to restrict the minister's powers. In 1997, as the last step in Hungary’s constitutionalization following the transition to democracy in 1989, comprehensive reform of the judicial administration abolished the minister's administrative powers. The new 1997 regulation aimed for the absolute separation of the judicial administration from the executive power. Court administration was removed from the executive branch and all authorities to govern the judiciary were transferred to the newly-established National Judicial Council, an independent body where judges were represented strongly.

The comprehensive transformation of the Hungarian constitutional system in 2011-2012 brought about a reform of court administration again. The new model provoked criticism from the Venice Commission and the European Commission. It is a unique system of judicial administration which concentrates the powers in the hands of a single person, i.e., the President of the National Office for the Judiciary (NOJ), who heads the judicial administration. The President of the NOJ, like the Chief Justices, is elected by Parliament with a two-thirds majority for a nine-year period. The other pillar of the new judicial administration system is the National Council of Justice, a judicial self-government body, the function of which is to supervise the NOJ President’s administrative work. Even though in 2012, due to the recommendations of the Venice Commission, the Hungarian Government amended certain elements of the regulation so that the NOJ President’s powers became limited and her activities were subjected to greater oversight, many critics emphasized that the essence of the centralized administrative model remained the same. Despite these critics, from the perspective of judicial independence, the introduction of the ministerial model for court administration represents a regression, as it exposes the judiciary to more direct Government influence.

This is not the first occasion on which the governing majority has attempted to shape the personnel of the courts. In 2012, the introduction of a new mandatory retirement age for judges (lowered from 70 to 62 years), affected the most senior 10% of the judiciary (over 270 of the approximately 2900 judges), mostly those holding higher judicial positions, including several court executives. The main criticism of this move was that it paved the way for many judicial leaders to be replaced with judges appointed by the new administrative leadership. Setting up the separate administrative court system, and the introduction of the ministerial model of court administration, are newer attempts that may influence court cases’ outcomes in the Government’s favour.

[1] Act CXXX and Act CXXXI of 2018.

[4]Opinion on Act CLXII of 2011 on the Legal Status and Remuneration of Judges and Act CLXI of 2011 on the Organisation and Administration of the Courts of Hungary, adopted by the Venice Commission at its 90th Plenary Session (Venice, 16–17 March 2012), CDL-AD(2012)001, paras. 111–115. Baka v. Hungary App. No. 20261/12 (ECtHR, 27 May 2014) and Baka v. Hungary App. No. 20261/12 (ECtHR, 23 June 2016).